§ 6.2.7 IMPROPER CONDUCT.

• Jurisdiction: Arizona

§ 6.2.7 Improper Conduct. In Wagenseller, the Arizona Supreme Court concluded that ordinarily, tortious interference requires proof that the defendant's actions were improper in either their motive or method. To assist in this determination, courts must consider the seven factors outlined in Restatement (Second) of Torts Section 767:

1. The nature of the actor's conduct;

2. The actor's motive;

3. The interests of the others with which the actor's conduct interferes;

4. The interest sought to be advanced by the actor;

5. The social interests in protecting the freedom of action of the actor and the contractual interest of the other;

6. The proximity or remoteness of the actor's conduct to the interference; and

7. The relations between the parties.²⁷

The comments to the Restatement indicate that there must be a weighing and balancing of these factors to determine if the conduct is improper.²⁸ The burden is on the plaintiff to show the impropriety of the defendant's conduct based upon the examination of all of the factors.²⁹ Frequently, application of these factors is difficult³⁰ because they are fact-specific and do not lend themselves to a categorical black and white rule.³¹

Nevertheless, it is possible to make some generalizations about how improper motive may be determined. The factors to be given the most weight include the nature of the actor's conduct and the actor's motive.³² However, if the actor is motivated by an intention to protect his own economic interests rather than to injure the contracting party, such a motive is not "improper" under this test.³³ This result is true even though an actor with a "legitimate competitive reason . . . may also bear ill will toward his competitor."³⁴

Improper motive cannot be shown where an action is brought against a supervisor who acted within the scope of his or her employment if the employer itself cannot be held liable for the same actions.³⁵ It is unclear if evidence of a hostile working environment supports a tortious interference claim.³⁶

As the remaining cases in this section show, Arizona courts will grant summary judgment for a defendant if there is insufficient evidence to create a triable question of fact that the defendant acted with an improper motive.

In Lindsey v. Dempsey, a head basketball coach brought an action against the university's athletic director and president for claims including intentional interference with contract.³⁷ The coach maintained that the defendants were motivated by an improper desire to use him as a temporary coach while the athletic director took actions to hire a "big-name" coach to replace him. The only evidence the coach provided of the athletic director's improper motive was that he met with the coach several times to discuss problems with the basketball program, he met separately with players on a single occasion to discuss their problems with the coach, he listened to reports about the coach from other persons, and he recommended to the president that the coach's employment not be continued the next season.³⁸ The court found that there was no improper interference because the coach produced no evidence of any improper motive or action by the athletic director, who had merely acted in his capacity as the coach's supervisor to try to establish a successful basketball program. Although the court agreed that the question of improper interference with contracts is one of fact and not law, the issue may be decided as a matter of law where there is no evidence of any improper motive or action in the record.³⁹

In another case involving a university employee, a professor sued the state board of regents, president, vice president, provost, college dean, and head of the department for intentional interference for their actions in disciplining him for allegedly serving marijuana-laced cookies to his students.⁴⁰ After the professor was brought up on charges under the university's code of conduct, the university initiated an...